News

91-year-old Marin man who survived gunfight irked his weapons have not been returned

By Gary Klien, The Marin Independent Journal,

Posted:
04/25/2013 10:49:59 AM PDT

Now that the man who tried to kill him is off to prison, Greenbrae resident Jay Leone wants his guns and valuables back. But it could take anywhere from a couple of months to several years.

Leone's gun collection, bullets, watches and jewelry are being kept in evidence while the convicted attacker, Samuel Cutrufelli, contemplates an appeal. Cutrufelli, who received a life sentence last week, has 60 days to file a notice of appeal, and the appeal itself could take years.

Leone, 91, was unpleasantly surprised to learn that his belongings would not be returned to him immediately.

"Those guns are worth a fortune," said Leone, 91. "That's stealing from me."

The crime occurred Jan. 3, 2012, at Leone's home on Via La Cumbre. Authorities said Cutrufelli, a methamphetamine user with an assault record, broke into Leone's home, put a gun to his head, tied his wrists, blindfolded him, and rummaged through his bedroom for valuables.

Leone, a gun collector and World War II veteran, testified that he wriggled his hands free, convinced the burglar to let him use the bathroom, and retrieved one of his five guns from the bathroom.

In the ensuing gunfight, Leone was shot once in the face and Cutrufelli was shot several times in the body.

A Marin County jury convicted Cutrufelli, 31, of attempted murder, robbery, burglary and other counts. Last Thursday, Judge Andrew Sweet sentenced him to 86 years to life in state prison.

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Leone

said his gun collection includes a .357 Magnum he has had since the 1960s and a German handgun his father gave him. He values the gun collection at $5,000 to $6,000.

The trial prosecutor, Deputy District Attorney Dorothy Chou Proudfoot, said she is working on getting Leone his property back.

"On felony cases, I generally wait until the 60-day notice of appeal period expires, and if no appeal has been filed in that time, I will bring a motion to return all the evidence that was seized pursuant to search warrant, and notify the law enforcement agency that I am no longer requesting that they retain evidence seized by other means," she said. "If an appeal is filed, then I'll have to decide what to do."

Public Defender Jose Varela, whose staff represented Cutrufelli for the sentencing after he dismissed his trial lawyer, said the public defender's office is obligated to protect the evidence.

"We have a duty to appellate counsel to ensure that any evidence important to Mr. Cutrufelli's appeal be kept in the court's custody for further review," Varela said. "Our only concern with regards to the retention of the evidence is to ensure a fair appeal."